P. v. Nguyen

Filed 11/30/05 P. v. Nguyen CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. DUSTIN DAT NGUYEN, Defendant and Appellant.

B179758 (Los Angeles County Super. Ct. No. KA057667)

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Martinez, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.

Dustin Dat Nguyen appeals from judgment entered following an order revoking probation and imposing a previously ordered suspended prison sentence of four years. Initially he had pled no contest to one count of assault with a deadly weapon and with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). Appellant claims his probation revocation hearing was barred by the principles of due process and res judicata and that the evidence was insufficient to sustain the finding that he violated the terms of his probation. For reasons explained in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On October 27, 2004, at the probation revocation hearing appellant objected to the proceeding, arguing that they “already had this hearing, that witnesses were called and because People didn’t have sufficient evidence that day, they withdrew the motion after witnesses were called . . . .” Appellant likened the situation to where the “People dismiss before a trial they can refile. If they dismiss after the jury [is] sworn, jeopardy [has] attached, they can’t.” Appellant objected “on due process grounds arguing they have already had their day in court.”

The People responded that the previous week the case had been set for a probation violation hearing. While the probation officer was testifying, the court believed that a Miranda[1] warning should have been given by the probation officer prior to his discussion with appellant and did not permit statements appellant made to be admitted without admonishment and waiver of rights. At that point, the People withdrew the request and the case was “put over so [the People could] get in the actual officer involved in the incident that brought about this request for revocation . . . .” The People argued that the probation revocation hearing was not similar to or the same as a trial.

The court stated it was of the view that double jeopardy principles did not apply to the violation of probation. While the prosecution would not be permitted to relitigate a probation violation matter where a judicial determination had been made on the merits, the previous proceedings had not resulted in a judicial resolution but an abrupt termination of the proceeding to arrange for the appearance of a necessary witness. The court stated looking to the principles of fundamental fairness, only four working days had passed, “So there has not been a substantial or significant passage of time. There doesn’t appear to be any fundamental unfairness that raises issues of due process since there doesn’t appear to be any prejudice which has accrued to the defendant.” The court determined the People were not barred from proceeding with the hearing and allowed it to take place.

At the probation revocation hearing, Drug Enforcement Administration special agent Edwin Outlaw testified that on June 26, 2004, he was at the National Orange Show Fair Grounds in San Bernardino assisting the San Bernardino County Sheriff’s Department in conducting undercover narcotics purchases. On that date in a parking lot outside of the event, he approached appellant and asked him if he had any Ecstasy. Appellant acknowledged that he did and that it would cost $20 per pill. The agent agreed to purchase the pills and gave appellant $40 for two pills. Based on his knowledge, training, and experience, the agent believed the pills were an illegal form of Ecstasy. He acknowledged that people who buy Ecstasy at times are cheated, in effect, by receiving a “legal variety.” Some dealers try to pass off the legal form of Ecstasy for the contraband type.

The People argued that according to the testimony, appellant sold the witness two pills of Ecstasy. Based on the agent’s knowledge, training and experience, he believed they were the illegal form. However, for the purposes of the probation revocation hearing, it did not matter whether the pills were in fact the illegal form. Appellant was on probation and in violation for failing “to obey all laws.”

The defense argued that if appellant sold someone, who wanted to buy Ecstasy, the legal version, he committed no crime and that according to the record, we do not know if appellant sold the legal version or illegal version.

The court found based on the totality of the circumstances, appellant was in violation of the probation term that he obey all laws, stating “[i]f the substance is what it purports to be and that is a controlled substance then we have a sale of a controlled substance . . . . But even if it isn’t, we have a sale in lieu of violation of 11355 of the Health and Safety Code. . . . [¶] [T]he court is reasonably satisfied that [appellant] is trafficking either the actual substance itself or exploiting those who believed that the substance was an illicit drug. Under either circumstance, the defendant would be in violation of probation.”

DISCUSSION

I

Appellant contends the second hearing was barred by the principles of due process, collateral estoppel and res judicata.

It is settled that the principle of double jeopardy does not apply in the context of a probation revocation proceeding. (See In re Coughlin (1976) 16 Cal.3d 52, 60-61.)

Appellant’s reliance on Kellett v. Superior Court (1966) 63 Cal.2d 822 to establish a violation of due process is misplaced. There the court found defendant had been subjected to needless harassment when he was subjected to multiple prosecutions for closely related crimes.

Additionally, there is no violation of collateral estoppel or res judicata. “Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, [the doctrine is applied] only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.] The party asserting collateral estoppel bears the burden of establishing these requirements. [Citation.]” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) “The doctrine of collateral estoppel is one aspect of the concept of res judicata. In modern usage, however, the two terms have distinct meanings. The Restatement Second of Judgments, for example, describes collateral estoppel as ‘issue preclusion’ and res judicata as ‘claim preclusion.’ [Citation.]” (Ibid., fn. 3.)

The issue to be decided here, whether appellant violated probation, was not decided in the former proceeding and there was no final decision on the merits. Rather, when the People realized they were not going to be able to prove the probation violation by questioning the probation officer about incriminating statements appellant made, the case was recalendared in another department of the superior court for a decision about whether to assign a new date for the revocation hearing or let appellant “go.”

In People v. Villiness (1987) 192 Cal.App.3d 1298, appellant sought reversal of revocation of probation because the revocation was ordered at a second proceeding after the first proceeding had been dismissed due to the absence of a necessary prosecution witness. The court rejected appellant’s argument that it was fundamentally unfair and a violation of due process, noting that the case involved neither unreasonable delay nor a piecemeal approach to revocation. Additionally, the court found the superior court’s actions were not misleading and there was no evidence that appellant was prejudiced by the delay. The court concluded, “that, particularly where there has been no evidence presented, the refiling of a declaration letter seeking revocation of probation following dismissal of the first revocation proceeding is permissible simply because there are no statutory, due process, or policy reasons that preclude refiling.” (Id. at p. 1305.)

Similarly, here there are no statutory, due process or policy reasons that would preclude the proceedings where probation was actually revoked. There was no unreasonable delay or piecemeal approach to the revocation. The continued proceeding occurred four business days after the first proceedings were terminated and there is no evidence that appellant was prejudiced by the delay. The court did not mislead appellant into thinking no further action regarding the revocation of probation would take place as the court explained to him the matter was be rescheduled in another court to decide how to proceed.

II

Equally without merit is appellant’s claim that the evidence was insufficient to support the finding that he violated the terms of his probation. Pursuant to Penal Code section 1203.2, subdivision (a), a court is authorized to revoke probation “if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . .” The standard of a preponderance of the evidence is used when determining whether a probation violation has occurred. (People v. Rodriguez (1990) 51 Cal.3d 437, 445-446.) “Revocation of probation lies within the broad discretion of the trial court. [Citation.] Absent abuse of that discretion, an appellate court will not disturb the trial court’s findings. [Citation.]” (People v. Self (1991) 233 Cal.App.3d 414, 417.)

“Ecstasy” is the street name for “3, 4-methylenedioxymethamphetamine” and is also known as “MDMA.” (See People v. Nazem (1996) 51 Cal.App.4th 1225, 1228.) Pursuant to Health & Safety Code section 11054, subdivision (d)(6), it is a controlled substance.

The evidence presented at the revocation hearing was sufficient to support the court’s finding that appellant had violated the probation condition that he obey all laws. A reasonable trier of fact could conclude based on a preponderance of the evidence that the Ecstasy sold by appellant was the illegal variety in violation of Health and Safety Code section 11379 or that he falsely represented it to be such in violation of Health and Safety Code section 11382.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURRY, J.

We concur:

HASTINGS, Acting P.J.

WILLHITE, J.

[1] Miranda v. Arizona (1966) 384 U.S. 436.